| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MITCHELL -v- BIN [2004] WADC 181 CORAM : CHANEY DCJ HEARD : 21-24 JUNE 2004 DELIVERED : 3 SEPTEMBER 2004 FILE NO/S : CIV 1015 of 2003 BETWEEN : ANDREW ROBERT SCOTT MITCHELL Plaintiff
AND
AIN ABDUL RAMAN BIN
Defendant
Catchwords: Personal injuries - Assessment of damages - Soft tissue spinal injury - Past loss of earnings - General damages
Legislation: Nil
Result: Plaintiff awarded $122,504
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Representation:
Counsel:
Plaintiff : Mr J G Staude
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Chan Galic
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 CHANEY DCJ: The plaintiff, who was born on 15 November 1965, was injured in a motor vehicle accident on 5 September 1997. The accident occurred as the plaintiff was driving home from work, and stopped behind another car at a school crossing. The car behind did not stop, but ran into the back of the plaintiff's vehicle, shunting the plaintiff's vehicle into the car in front. Mr Mitchell was driving a Holden Kingswood Station Wagon. The car that ran into him was a Ford Laser. Mr Mitchell's car was able to be driven home, although only by Mr Mitchell stopping to refill the radiator from time to time on the way home. According to Mr Mitchell, the cost of repairs was in the range of $2500, but repairs were never carried out because the value of the vehicle was less than the cost of repairs.
2 According to Mr Mitchell, he felt sharp pains up and down his back, his shoulder was sore and his neck was tender immediately following the accident. When he arrived home, he was in a lot of pain. That night he consulted Dr Scullion, a general practitioner, who prescribed pain killers. 3 The next day he remained in considerable pain and went back to Dr Scullion who gave him stronger medication. 4 The accident occurred on a Friday afternoon, Mr Mitchell said that he was scheduled to work over the weekend, but did not return to work until the following Monday. 5 Liability for negligence in causing the accident is admitted by the defendant. The plaintiff claims damages for the injuries he says he suffered as a result of the accident.
Mr Mitchell's work history 6 The plaintiff left school at the age of 14, and worked with his father on a casual basis as a furniture removalist for about 12 to 14 years. He thereafter worked in various unskilled positions. Eventually, he undertook a course as a plant operator, and for about 5 to 6 years before the accident, had been working as an asphalt worker. He had worked with several employers during that period. I was told that is the nature of such work, where workers are engaged in relation to particular contracts, and when the contract comes to an end, the worker seeks employment elsewhere. Mr Mitchell said that he had never had any difficulty in finding a new employer when a particular contract came to an end. (Page 4)
7 The work which Mr Mitchell undertook varied to some degree, depending on the particular employer. The work involved mainly driving a roller, but also required shovelling, raking and sweeping, driving trucks, and driving bobcats. Mr Mitchell said that with the larger employers, there was less shovelling and raking, more time was spent driving the roller. On some jobs, Mr Mitchell said that he would spend approximately 80 per cent of the time driving the roller. 8 At the time of the accident, Mr Mitchell was working for an organisation known as Asphalt Surfaces. As mentioned, he did not attend work on the Saturday and Sunday following the accident. He did, however return to work on the following Monday. He continued to work for Asphalt Surfaces until 10 March 1998. He then began work immediately with a company called 3G Properties Pty Ltd, which traded as Jackson Paving. He said that Jackson Paving was a smaller organisation than Asphalt Surfaces, and described the work which he had to do as "more hands on", by which I took the plaintiff to mean that he had more work off the roller than had been the case with Asphalt Surfaces. 9 Mr Mitchell continued to work for Jackson Paving until 12 May 1998 when he ceased work because, he said, of ongoing problems with his back, and medical advice that he should cease working to enable his back to recover. 10 Mr Mitchell remained off work until 10 July 2000, when he commenced work as a security officer with Callaghan Security Services. He was introduced to that work as a result of a rehabilitation programme which had been developed for him by CRS Services, a rehabilitation consultant engaged to endeavour to get Mr Mitchell back into the workforce. 11 Mr Mitchell worked for Callaghan Security Services on a casual basis through until August 2001, when he returned to work with Jackson Paving. He resumed his former duties as an asphalt worker, driving a roller and attending to the other tasks necessary. He has continued since that time to work in that capacity, although he is now employed by CSR Emoleum, for whom he works both in Perth and on other locations throughout the State where that company may be contracted to do work. 12 The principle issue in this trial is Mr Mitchell's claim for past loss of earnings for the period from 12 May 1998, until 17 September 2001, when he returned to work for Jackson Paving. There is no claim for any
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loss of income outside that period, and no claim for future loss of earning capacity.
The plaintiff's medical condition and capacity for work 13 Not long after the accident, the plaintiff came under the care of Dr John Aquilina, a general practitioner. He encouraged Mr Mitchell to continue with his work, notwithstanding the pain and discomfort of which the plaintiff complained. The plaintiff's evidence was that the doctors suggested that he should not cease working, but to persist because the activity would assist in his recovery. Dr Aquilina's evidence was consistent with that approach having been suggested. 14 In October 1997, Dr Aquilina referred Mr Mitchell to Dr Andrew Taylor, a consultant rheumatologist. In his report of 24 October 1997, Dr Taylor records that Mr Mitchell had told him that "he finds that at work when he is active, the symptoms are reasonable, but when he comes home at night, things tend to stiffen up and become more painful. He finds it hard to stand erect and open his chest fully." Dr Taylor arranged a bone scan and concluded that the plaintiff's symptoms were entirely soft tissue based. That is a conclusion with which Dr Aquilina clearly concurred. 15 Mr Mitchell said in evidence that, during the period between the accident and May 1998 when he ceased working, he found work "very hard to cope with", and that he needed to take painkilling medication. He was prescribed panadeine forte, endone, and diazepam by Dr Aquilina. Endone was described by Dr Aquilina as a morphine derivative used in cases of severe pain. 16 The plaintiff's wife, Nicole Mitchell gave evidence that immediately after the accident, her husband was shaken up, distressed, and complained of pain. She drove him to see Dr Scullion that night. She said that while he was working, he would come home from work exhausted and emotionally drained. He was unable to assist in the household chores such as bathing the children, which he had actively assisted with before the accident. She said that some nights he was unable to sleep. 17 As well as taking the prescribed analgesics, Mr Mitchell also underwent physiotherapy which, according to both Mr and Mrs Mitchell, resulted in some improvement to his condition. Precise details as to when physiotherapy commenced, and its frequency, are not clear. It is apparent from the evidence, however, that Mr Mitchell did undertake the
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recommended physiotherapy treatment, including self administration of exercises and stretching designed to improve his condition. 18 It is apparent that the bulk of Mr Mitchell's problems related to his thoracic spine. The early reports of the medical practitioners all focussed upon problems with the T5 to T10 region. Mr Mitchell also asserted that during the period of work in the months following the accident, he also experienced neck pain and headaches. The evidence that he complained of neck pain to Dr Aquilina was supported by Dr Aquilina who gave evidence that he had a record of a complaint of cervical spinal problems in November 1997. 19 By May 1998, Mr Mitchell said that his symptoms had become worse, and the analgesics which he was taking made him drowsy. He said that Dr Aquilina advised him that he should stop work and give his back a chance to recover, and he accepted that advice. He stopped work and tried to rest up as much as he could, and do as little as possible. At this stage he was having physiotherapy on a regular basis and was undertaking a programme of swimming pool work, and a programme of stretching at home. 20 In a report dated 14 May 1998, Dr Aquilina reported to the defendant's insurer that: "During work he experiences appreciable pain, but this is tolerable as his body is continuously moving and warmed up from the intensive activities. When he stops work, however, he becomes very stiff in his back and pain becomes more intense. I have seen him on various occasions, after his work, when he was in obvious pain and manifested marked stiffness of his back muscles. His condition was much improved during a short holiday he had recently. His current work is even more intensive than the previous one, and he is finding it difficult to continue. Up to now Mr Mitchell has pushed himself to work under stress due to financial and family demands." 21 Dr Aquilina then went on to record that Mr Mitchell's injury would probably prevent him performing his current type of work at least in the medium long term, and that he had advised Mr Mitchell to seek alternative employment which is less physically demanding. Dr Aquilina recorded Mr Mitchell's expression of concern as to his lack of skills in other areas of employment, and the potential need for a rehabilitation provider to be engaged. Dr Aquilina concluded by saying that: "I believe
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that his line at work is hindering resolution of the injury and also causing considerable pain." 22 Mr Mitchell was also referred to Mr Cameron Thrum, an orthopaedic surgeon, by the defendant's insurer in February 1998. He reported complaints of intermittent neck pain, associated headaches, back and chest pain. He concluded that it did appear that the plaintiff had sustained a soft tissue injury to the cervical spine, expressed uncertainty as to the complaint of injury to the plaintiff's chest. In October 1998, Mr Thrum expressed the opinion that he thought it would be unwise for the plaintiff to return to his previous occupation, and that he would be best suited to go into lighter employment. He suggested that the claim not be finalised for a further six months. In July 1999, Mr Thrum again reviewed the plaintiff, and concluded that he continued to show signs of soft tissue injury to the cervical and perhaps thoracic spine. He expressed the view that there were no discrepancies between subjective and objective findings, and that the plaintiff would require the continuation of an exercise programme, perhaps with his gymnasium programme and certainly a swimming programme. He expressed the view then that he thought it unlikely that Mr Mitchell would return to his pre-accident activities, and that he would benefit from rehabilitation. 23 On 3 May 2000, Mr Thrum again reviewed the plaintiff, then expressed the opinion that Mr Mitchell's injuries were recovering, that apart from a swimming and perhaps gymnasium long term programme, no other treatment was required, and that the injuries had sufficiently stabilised to allow finalisation of the claim. In a subsequent review in July 2001, Mr Thrum said: "Basically, I think this man has proven his motivation in trying to get back to work. I think, however, work such as asphalt and plant operator may be a little difficult for him because of his obvious stiffness in his neck.", but otherwise expressed the view that he would be fit for a large range of occupations which did not involve heavy lifting or twisting or turning of the neck. 24 The final occasion on which Mr Thrum saw the plaintiff was in November 2003 when the plaintiff had returned to full time work. He said that physical examination demonstrated tenderness in the low cervical area and some restrictions on flexion and extension, but Mr Thrum said that he expected the plaintiff to be able to go on with full time work in the future, as he had been, at that point, for a couple of years. 25 The defendant called Dr John Rosenthal who saw Mr Mitchell in October 2000. Mr Mitchell had commenced working with Callaghan
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Security Services on a casual part time basis. He reviewed previous medical reports and examined Mr Mitchell. He concluded that he could exclude any significant spinal, structural or neurological injury, and in his report to the defendant's solicitors of 30 October 2000 he said that he could find no objective clinical reason to suggest that Mr Mitchell would not be able to return to his pre-accident occupation, an event which, he said, will occur when he comes off Panadeine Forte and there had been a determination of all medico-legal issues. 26 Dr Rosenthal saw Mr Mitchell again in February 2004, at which time the plaintiff had been working back in his pre-accident employment for approximately two and a half years. He concluded then that Mr Mitchell has "mild residual mid-back discomfort consistent with the earlier history of musculoligamentous strain", and that there had been a very significant degree of improvement since Dr Rosenthal last saw him "both objectively and subjectively". He expressed the view that Mr Mitchell's residual disability would not exceed 5 per cent functional impairment of the thoracic spine. 27 Dr Rosenthal expressed the view that the natural history of soft tissue injuries of the nature suffered by the plaintiff is that they would resolve over a matter of months, probably 18 to 24 months at the most. He said that he would expect an injury of this nature to achieve full clinical expression within a matter of weeks, and certainly a couple of months at the most. Dr Rosenthal agreed that the advice to Mr Mitchell when the injury was initially suffered that he should keep working was reasonable. He also agreed that the prescription of Panadeine Forte and Endone suggested that the plaintiff was working in the face of fairly considerable pain symptoms, and that it was likely that the work that the plaintiff was doing may have been causing symptoms that were unreasonable. He expressed the view that if the plaintiff was experiencing pain in the context of what he did at work, and clinical findings were objective and consistent, then it would have been reasonable to suggest that the plaintiff undertake a lighter form of work. He agreed that the plaintiff was obviously complaining of symptoms because otherwise the investigations undertaken in 1998 would not have been undertaken. 28 The defendant also called Mr Ratan Edibam, an orthopaedic surgeon. He saw Mr Mitchell in early 2001. He reviewed previous radiological examinations and examined Mr Mitchell. He expressed surprise at the absence of any radiological examination of the cervical spine in 1998, given the history of neck pain as outlined by Mr Mitchell at his first consultation with him. (Page 9)
29 Mr Edibam expressed the view that, if the earliest mention of the problems in the neck was about two months after the accident, then the neck symptoms could not be related to the accident because the time interval is too great. Mr Edibam acknowledged that he could not relate the muscle tenderness of which Mr Mitchell complained to the accident four years before he saw the patient because he did not know whether Mr Mitchell had ongoing tenderness from the beginning.
The defendant's contentions 30 The defendant contends that Mr Mitchell has at all times remained capable of earning his pre-accident income, and relies heavily on the fact that the plaintiff continued to work in, effectively, the same job for eight months after the accident before ceasing work. It is the defendant's case that the symptoms which Mr Mitchell complained of from time to time were not related to the accident. The defendant's counsel noted that the complaints of neck pain were not made until November 1997 when the first record of neck pain was made by Dr Aquilina in his notes. He said that reference to headaches first appeared in Mr Thrum's report of 9 February 1998 (which also records complaints of "intermittent neck pain"). The defendant refers to Mr Thrum's report of 26 October 1998 which refers to tenderness "bilaterally in the trapezii". The defendant also points out that Mr Mitchell now complains of pain in his low back, whereas the initial complaints of pain were mostly related to the thoracic spine. 31 The defendant also contends that, in his evidence, Mr Mitchell exaggerated his symptoms. It was submitted that Mr Mitchell never, in fact, lost earning capacity, but chose, for reasons best known to himself, to absent himself from work. In that regard, the defendant relied upon the evidence of Mr Maccarone, a supervisor employed by Asphalt Surfaces, one of Mr Mitchell's former employers, who said that in March 1998, Mr Mitchell simply walked off the job leaving his roller parked in an intersection. The defendant submitted that that fact indicated an unwillingness on Mr Mitchell's part to work. The problem with that submission, which I reject, is that Mr Mitchell commenced work with another company within a matter of a few days, and there is no basis for drawing an inference that, whatever may have been the reason for leaving Mr Maccarone's employment, it had anything to do with a desire on Mr Mitchell's part not to continue work as a asphalt worker. (Page 10)
32 In relation to his work as a security guard, as part of the rehabilitation programme, the defendant contends that Mr Mitchell had a capacity to work longer hours than he actually worked but simply chose to work limited hours so as to enable him to participate in his activities associated with his hobby of showing his dogs. The defendant submitted that Mr Mitchell's earnings during his time working for Callaghan Security Services were not representative of his earning capacity at that time.
Conclusions in relation to loss of earning capacity 33 The plaintiff said that prior to the accident in September 1997 he had been in good health, and had had no reason to be off work. His evidence was that, prior to the accident, he was very actively involved in his family and domestic activities, including active involvement of himself, and with his wife and children, in softball. He said that immediately after the accident, he felt sharp pains up and down his back, his shoulders were sore and his neck was a bit tender. He sought immediate medical advice on the evening of the accident. He remained under the care of his general practitioner whom he saw on a regular basis thereafter. He was prescribed analgesics, including Endone, and he was also prescribed diazepam. He said that the symptoms for which the medications were prescribed were pain and muscle spasms. He underwent physiotherapy at the suggestion of his doctor, as well as a swimming programme which he did on a couple of occasions. He said that he was advised by his doctor to persist with his work in the hope that his symptoms would resolve, and that to stop work might result in his back "seizing up". Mr Mitchell's evidence to that effect was supported by the evidence of Dr Aquilina. None of the specialists who gave evidence suggested that that advice was inappropriate. 34 Ultimately, the plaintiff said that his symptoms did not improve, but in fact got worse. Again, that evidence is consistent with Dr Aquilina's evidence and objectively consistent with the fact that in the latter part of 1997 and early 1998, Mr Mitchell was referred to Mr Thrum for specialist assistance. 35 It was not suggested by any of the medical practitioners who treated Mr Mitchell in the months following the accident, either that his symptoms were not thought to be genuine, or that they were not related to the motor vehicle accident. (Page 11)
36 The decision by the plaintiff to cease work in May 1998 was a result of Dr Aquilina's advice. That was consistent with the views being expressed by Mr Thrum at the time, and at trial, Dr Rosenthal agreed that it was reasonable advice in the light of the plaintiff's complaints at the time. 37 I found the plaintiff a credible witness. All of the evidence suggests that he followed medical advice with appropriate diligence with a view to overcoming the symptoms of which he complained to the doctors, and about which he spoke in his evidence. I accept that he undertook the stretching exercises and pool programmes recommended for him, but, whilst he remained in his pre-accident employment, his condition did not improve, and probably got worse. In the circumstances, it was entirely reasonable for him to accept the medical advice and cease working in May 1998. I find that he made the decision to stop work by reason of his ongoing symptoms, and the medical advice he received, and not for any other reason. 38 The defendant argues that the symptoms that Mr Mitchell was suffering by May 1998, were not caused by the accident. That contention is based upon an attempt to undertake a detailed analysis of the medical records in the months leading up to that time, and to suggest that, because certain symptoms were not mentioned until some time after the accident, I should conclude that they were not caused by the accident. The defendant proffers no suggestion as to how the symptoms might otherwise have arisen. 39 It is true that Dr Aquilina's initial report of 28 November 1997 to the defendant's insurer does not mention cervical pain, but rather focused upon tenderness over the dorsal spine. I note, however, that Dr Aquilina's evidence was that by November 1997 his notes reveal that there had been complaint of cervical pain. Notwithstanding that note, cervical pain was not mentioned in the report of 28 November 1997. In my view, it is reasonable to conclude that the focus of Mr Mitchell's initial complaints may have been his dorsal spine, but that is not to say that was the only injury suffered in the accident. 40 As observed, the defendant has not suggested any other cause of the symptoms complained of. There is no basis for concluding that Mr Mitchell was not actually suffering from the symptoms of which he complained at the relevant times. He enjoyed good health, and experienced no problems with any part of his spine, prior to the accident. I am satisfied that the symptoms which the plaintiff suffered, and which
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led to Dr Aquilina's advice to cease work in May 1998, were caused by the accident. 41 Mr Mitchell remained under fairly regular medical care during his time off work. He eventually undertook a rehabilitation programme when it was thought that his condition was not likely to improve to a degree which would enable him to return to his pre-accident employment without further aggravating his problems. He undertook that course, and it led to part time employment with Callaghan Security Services. 42 Mr Callaghan said that when the plaintiff first started work with his company his availability was good, he was always at work, punctual and they had no problems with him. He said that Mr Mitchell was offered work at a shopping centre in Thornlie, which comprised three hours per day, seven days per week. Mr Callaghan said that Mr Mitchell did not do the full 21 hours per week that was available, because he had advised them, before commencing work, that he could not work seven days a week because he wished to have time off on weekends, and sometimes mid-week, to pursue his dog showing interests. He ultimately left Callaghan Security Services on amicable terms. 43 The defendant's contention was that Mr Mitchell was capable of working longer hours with Callaghan Security Services and that increased hours were available. The evidence as to whether there was any refusal by Mr Mitchell to do particular work, other than his general advice to the employer that he could not work seven days a week, is quite vague. If the defendant is to argue that Mr Mitchell did not mitigate his loss because he refused to do work which he was able to do and unreasonably refused to do, the burden of showing that the refusal was unreasonable rests on the defendant. In my view that burden has not been discharged. The evidence would not enable any sensible assessment to be made as to what might have been available by way of additional hours to be worked by Mr Mitchell compared to those which he did work. No allegation to that effect was pleaded, and it is not clear how the defendant would seek to reduce the plaintiff's damages on that basis. In any event, my conclusion is that the evidence does not establish any unreasonable refusal on the part of Mr Mitchell to undertake work whilst with Callaghan Security Services. 44 The defendant contended that, as from January 2000 when Mr Mitchell commenced assessment for a rehabilitation programme, I should find that he was fit to return to his pre-accident employment. That argument is based, at least in part, on a notation in the rehabilitation
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company's records that Mr Mitchell said that "If I can't find anything suitable, I'll go back to my old job". The defendant suggests that indicates an acceptance by Mr Mitchell that he was then capable of returning to his pre-accident employment. In my view, that inference is not reasonably to be drawn from that comment. It is clear from all of the evidence that, by January 2000, Mr Mitchell's domestic situation had deteriorated, in large part because of the financial stresses which had occurred by reason of his ceasing work some 19 months earlier. The comment says nothing more than that Mr Mitchell was anxious to obtain work which would remunerate him to the same level of his pre-accident employment, even if it meant aggravation of his symptoms, he would be forced to take that course and endure the aggravated symptoms. In my view, it would not have been reasonable to require him to have taken that course as at January 2000 in the light of the medical advice he was receiving at the time, which was to the effect that he ought not to return to his pre-accident employment. 45 It follows from the foregoing, that I am of the view that Mr Mitchell should be compensated for past loss of earnings on the basis of the amount which he would have earned from 12 May 1998 at his pre-accident occupation until he returned to work with 3G Properties Pty Ltd on 16 August 2001, less what he did earn from Callaghan Security Services.
The quantum of past loss income 46 In the financial year in which the plaintiff's accident occurred he worked a total of 45 weeks up until 12 May 1998. In that time his tax return reveals that he earned from his personal exertion a gross income of $31,495. Out of that figure the tax return reveals that he has work related expenses of $755. His income net of expenses for that 45 weeks was therefore $30,740 or $683 per week. Tax on that amount, allowing for the family tax benefit for three children and including the Medicare levy, is approximately $160 per week, giving a net weekly income in that year of $523 per week. 47 Compulsory employer superannuation contributions at that time were seven per cent of gross, or approximately $47.81 per week. Allowing for a 30 per cent reduction for tax and fund administration results in a net value of superannuation of $33.47. Rounding off the figures gives a weekly figure for earning capacity including superannuation as at the time of the accident at $555. (Page 14)
48 From 12 May 1998 until the plaintiff resumed work in his pre-accident capacity on 16 August 2001 is a period of 171 weeks. During that period at his pre-accident earnings the plaintiff would have earned a net income of $94,905 including superannuation. In that period the plaintiff earned a total net income of $8500 which entitled him to superannuation contributions of $462. Deducting those earnings from his lost earnings of $94,905 gives a loss of past earning capacity award of $85,643. 49 Interest on that amount should be awarded at the rate of three per cent from 12 May 1998 to 16 August 2001, and thereafter at six per cent to the date of judgment. Interest to 16 August 2001 (being 171 weeks at three per cent per annum) is $8449. From 16 August 2001 to 3 September 2004, interest (159 weeks at six per cent per annum) calculates at $15,712. Total interest is therefore $24,161.
Recreational activities 50 The plaintiff was active in a softball club before the accident in September 1997. His wife was also very active in softball, and the children were involved in T-Ball. Both the plaintiff's wife and the plaintiff coached teams, and their involvement with the Thornlie Hawks Softball Club was a combined family activity. The plaintiff's involvement in that activity suffered, although his evidence as to the amount of time that he was unable to play softball, and the results of his attempts to return to the game, was quite vague. Mrs Mitchell threw little light on that issue. I am prepared to conclude, however, that there was some disruption to the plaintiff's ability to participate in that activity, both on his own behalf and with his family, and that interruption was a consequence of the accident. 51 Both Mr and Mrs Mitchell gave evidence as to the disruption to their home life which resulted from the plaintiff's injuries. Both said that the plaintiff was unable to carry out the same role in the household as he previously had done. I accept that the pain which resulted from the plaintiff's injuries caused him to be irritable, and that that added to the strains between the plaintiff and his wife which ultimately led to their separation. 52 Shortly after the accident, however, the plaintiff and his wife became involved in the American Staffy Terrier Association, and the plaintiff was an office bearer of the committee of that Association. That role appears to have involved the plaintiff in regular showing of his own dogs, and participation in club activities. It would not appear that the plaintiff's injuries were any impediment to that social activity. (Page 15)
53 Mrs Mitchell gave evidence that her husband became socially withdrawn following the accident, and became unwilling, or unable, to participate in the social activities that they previously undertook. I accept, substantially, Mrs Mitchell's evidence in that regard, and that the plaintiff did become less involved in the family's normal social activities than he had been prior to the accident, and that the injury which the plaintiff suffered was a cause of that withdrawal. There may have been other factors, but that is not to the point.
The plaintiff's psychiatric difficulties 54 In 1999, Dr Aquilina referred Mr Mitchell to Dr Alexander Daneel, a psychiatrist. It is clear that, by that time, the plaintiff was having difficulties in his marriage, the family was under significant financial stress by reason of the fact that the plaintiff was no longer working, and the plaintiff was continuing to suffer ongoing pain and discomfort as a result of his motor vehicle accident. Dr Daneel prepared a comprehensive medical report in which he diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood. He identified a number of precipitating factors. Amongst those were what Dr Daneel described as "the orthopaedic problems and pain, with the resultant sleep problems, psychiatric problems and his inability to continue to work or enjoy life as before. Another consequence has been severe financial problems." In dealing with Mr Mitchell's prognosis, Dr Daneel said that an important issue is whether there is going to be a resolution of his orthopaedic problem, and therefore his chronic pain, "because the psychiatric problems are largely secondary to this." 55 As Dr Daneel's comprehensive report indicates, there are a number of factors which contributed to the anxiety and depression which he identified. The report analysis all significant factors dating back to the childhood of the plaintiff that Dr Daneel was able to identify. The thrust of his report is, however, to the effect that the injuries suffered by the plaintiff, and its consequences, were a significant causal factor in bringing about the condition which Dr Daneel diagnosed. 56 Dr Daneel has had no ongoing involvement with the plaintiff since August 1999. The plaintiff resumed full time work in September 2001. There is nothing in the evidence to suggest that the plaintiff's psychiatric condition did not respond to the consultations with Dr Daneel, or that the plaintiff has continued to suffer that depression and anxiety through to the present time. Accordingly, although I accept that the psychiatric problem suffered by Mr Mitchell was caused by the accident, I find that it was a
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temporary condition which manifested itself through 1999, but does not represent an ongoing issue for the plaintiff.
The plaintiff's non pecuniary loss 57 The injuries suffered by the plaintiff as a result of the accident significantly disrupted the plaintiff's life in the ways mentioned above. He was subjected to ongoing pain and discomfort for a number of years. Although now greatly improved, he still experiences pain in the shoulder blades and back, with occasional headaches. He takes minimal analgesia because of problems with constipation from the use of analgesics in the past. He prefers to manage his ongoing symptoms by stretching and exercise. He has joined a gymnasium at his own expense because he finds exercise assists in minimising his symptoms. 58 I am required by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 to assess the plaintiff's non pecuniary loss by reference to a comparison with "a most extreme case". Taking all of the foregoing into account, I assess the plaintiff's injuries at 10 per cent of a most extreme case. Ten per cent of Amount A as from 1 July 2004 is $25,700 which must then be reduced by Amount B, namely $13,000. The result is that the plaintiff's award for non-pecuniary loss is $12,700.
The Award 59 For the foregoing reasons, the damages to which the plaintiff is entitled is as follows: 1. Past loss of earnings $85,643 2. Interest on past loss $24,161 3. General damages $12,700 Total $122,504
60 There will be judgment for the plaintiff in the sum of $122,504.
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